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2019 Supreme(Guj) 1065
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N.V.Anjaria, J.
Ajaykumar Babulal Parmar - Appellant
Versus
State Of Gujarat - Respondent
Special Civil Application No. 10321 of 2018
Decided On : 25-06-2019
Subject
Judgement - SERVICE
Act Referred
CONSTITUTION OF INDIA : Art.226, Art.309, Art.16(4)(b)
Headnote
Constitution OF India, Art. 226 – Recruitment process is governed and regulated by the statutory rules framed by the State Government in exercise of powers conferred by Proviso to Article 309 of the Constitution, which are called the Assistant Public Prosecutor in the General State Service – Held, List of 425 candidates which was prepared by the GPSC as an interim measure without determining the roster thereto was neither of any consequence or significance. It was prepared by the GPSC out of anxiety to see that the further process could be sped up in accordance with law as it was not to be clear as to when the petition would culminate into finality. This list had no operational value nor had any legal sanctity. No right could have been claimed on that basis, nor does any right flow therefrom for the petitioners. Therefore, the prayer with regard to seeking implementation of the said list always stood, as far as the present petition was concerned, on a perishable premise or on already perished- premise to be without factual and legal merit. The prayer to seek implementation thereof was virtually a still-born prayer – Petition dismissed (Paras 10 and 11)
Facts of the Case:
To set aside communication dated 21st June, 2018 of the Legal Department, Government of Gujarat, addressed to Gujarat Public Service Commission, whereby 374 posts of Assistant Public Prosecutors came to be determined to be filled in and requisition for such number of candidates was sent fixing the roster for the same. The second prayer is for issuance of direction to quash the select list published by the Gujarat Public Service Commission containing the name of the said 374 candidates. The petitioners further want the respondents to proceed on the basis of the list of 425 candidates dated 17th March, 2017, which, according to the petitioners, was published as select list
Finding of the Court:
List of 425 candidates which was prepared by the GPSC as an interim measure without determining the roster thereto was neither of any consequence or significance. It was prepared by the GPSC out of anxiety to see that the further process could be sped up in accordance with law as it was not to be clear as to when the petition would culminate into finality. This list had no operational value nor had any legal sanctity. No right could have been claimed on that basis, nor does any right flow therefrom for the petitioners. Therefore, the prayer with regard to seeking implementation of the said list always stood, as far as the present petition was concerned, on a perishable premise or on already perished- premise to be without factual and legal merit. The prayer to seek implementation thereof was virtually a still-born prayer
Result: Petition dismissed
For the Appellant : Mr. Mitul Shelat With Ms. Disha N. Nanavaty Adv.
For the Respondent:Ms. Manisha Lavkumar, Government Pleader With Mr. K.M.Antani, AGP, Mr. Kamal Trivedi, Advocate General With Mr. D.G. Shukla Adv.
JUDGMENT :
Heard learned advocate Mr.Mitul Shelat with learned advocate Ms.Disha Nanavaty, learned Government Pleader Ms.Manisha Lavkumar assisted by learned Assistant Government Pleader Mr.K.M. Antani for respondent No.1 – State and learned Senior Advocate Mr.Kamal Trivedi assisted by learned advocate Mr.D.G. Shukla for respondent No.2 – Gujarat Public Service Commission, at length.
2. What is prayed in the present petition filed under Article 226 of the Constitution, is to set aside communication dated 21st June, 2018 of the Legal Department, Government of Gujarat, addressed to Gujarat Public Service Commission, whereby 374 posts of Assistant Public Prosecutors came to be determined to be filled in and requisition for such number of candidates was sent fixing the roster for the same. The second prayer is for issuance of direction to quash the select list published by the Gujarat Public Service Commission containing the name of the said 374 candidates. The petitioners further want the respondents to proceed on the basis of the list of 425 candidates dated 17th March, 2017, which, according to the petitioners, was published as select list.
2.1 From the contents of the impugned communication dated 21st June, 2018, it appears that pursuant to communication dated 08th June, 2018 by respondent No.1 – State, the Registrar General of the High Court addressed letter dated 11th June, 2018 indicating that total number of magisterial courts in the State entrusted with criminal cases were 689. As per the policy practised to place one Assistant Public Prosecutors in each court, the State Government determined the need to fill up 374 candidates in the courts, considering that 315 Assistant Public Prosecutors had have already been working.
3. The process for recruitment to the posts of Assistant Public Prosecutors (APPs) in the courts of the State was commenced by respondent No.2 – Gujarat Public Service Commissioner (GPSC) by issuing public advertisement dated 12th February, 2014, in which 554 posts were advertised. As part of the process, written examination was conducted on 03rd May, 2014. 3632 candidates appeared. The result was published on 04th June, 2015. Thereafter the viva voce was held, in which the GPSC called 1455 candidates. The viva voce and personality test was conducted between 21st April, 2016 and 23rd June, 2016. The final result came to be declared on 04th July, 2016. In all 543 candidates were shown as successful having obtained the minimum qualifying marks prescribed for the oral interview.
3.1 The recruitment process is governed and regulated by the statutory rules framed by the State Government in exercise of powers conferred by Proviso to Article 309 of the Constitution, which are called the Assistant Public Prosecutor in the General State Service, Class II Recruitment Rules, 2008, published under Notification dated 05th August, 2008. By another Notification dated 06th August, 2008, the Assistant Public Prosecutor, Gujarat General State Service Class II Recruitment (Examination) Rules came to be published. The recruitment process was undertaken in accordance with the said Rules.
3.2 On the merits of the prayers put-forth in the present petition as above, there is an irrefutable reflection of the merits of two previous petitions. In those earlier proceedings, the challenge was raised in respect of the very recruitment process. The aspects and issues were interwoven and inextricable. Therefore the controversy, the findings, the outcome and the status of the said earlier proceedings deserves to be mentioned in some detail.
3.2.1 The first litigation was in form of batch of petitions in Bhavneeta Rajeshkumar Darji v. State of Gujarat being Special Civil Application No.12701 of 2016 and allied petitions, in which the prescription of minimum qualifying marks in the viva voce was challenged. While the said petition was dismi
